Wednesday, January 18, 2012

Must be campaign season

The infringement lawsuits have begun. This one has a twist: Ron Paul is suing YouTuber NHLiberty4Paul over an anti-Jon Huntsman video posted as a reason to vote for Paul, alleging (1) false advertising under the Lanham Act, (2) false designation of origin under the Lanham Act, and (3) defamation (the theory being that it associates Paul with repugnant opinions). As is not uncommon with Lanham Act false association claims paired with defamation claims (see Jenzabar), the theories seem a bit suspect on their faces. Unless, contrary to what I've seen so far, NHLiberty4Paul is selling his/her own Paul stuff, it's not "commercial advertising or promotion" under the Lanham Act, so (1) doesn't work. (2) assumes symmetry, which doesn't make sense in this context: "I, random YouTube user, endorse Ron Paul" does not mean "Ron Paul endorses me." It would be nice if more courts in trademark cases noticed this! (3) is just tough to pull off for a public figure; Ron Paul in particular may find it difficult to show that the video, described as "libellous on its face," defames him--sure, it offers degrading and xenophobic reasons to vote against Huntsman. But even assuming people thought the message came from Paul and not from Paul's supporters (because if they think that, and it's true, then it can't be defamatory), can Paul prove a clear difference between that and other things he's said? (There may be a "dirty tricks" theory that this isn't from a real Paul supporter, but a theory of group defamation of the class of Paul supporters would be constitutionally dubious at this point and also I don't see that Paul would have standing to allege it.)

I have to say, as awful as the message of the video is, I hope the Does get counsel. Holding awful opinions is not a proper source of liability in our system.

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